MAXWELL B. SMITH v. MICHAEL W. BICKERTON M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MAXWELL B. SMITH,

Plaintiff-Appellant,

v.

MICHAEL W. BICKERTON, M.D.,

Defendant-Respondent.

_________________________________

September 9, 2016

Argued July 20, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2206-10.

John R. Connelly argued the cause for appellant (Drazin & Warshaw, attorneys; Mr. Connelly, on the brief).

Richard A. Amdur argued the cause for respondent (Amdur, Maggs & Shor, P.C., attorneys; Mr. Amdur, on the brief).

PER CURIAM

Plaintiff Maxwell B. Smith, who is presently incarcerated, filed this medical malpractice action. He appeals the March 20, 2015 order denying his motion to have his discovery deposition testimony admitted in lieu of his testifying at trial, as well as the June 8, 2015 order dismissing his complaint. We affirm.

I.

On April 29, 2010, plaintiff filed this malpractice action against defendant Michael W. Bickerton, M.D. Plaintiff's complaint alleged as follows. In March 2009, plaintiff came under the care of defendant, and received a cystoscopy, biopsy of a urethral lesion, and insertion of a suprapubic catheter. Plaintiff claimed that defendant failed to properly diagnose him, causing him to suffer acute renal failure. Plaintiff further alleged that defendant: failed to properly refer plaintiff to other medical personnel; negligently examined plaintiff; failed to provide plaintiff with appropriate treatment; failed to obtain plaintiff's informed consent prior to treating him; and was otherwise negligent in deviating from generally accepted medical standards. Plaintiff asserted that defendant's negligence was the proximate cause of subsequent procedures and surgeries that plaintiff required.

In November 2009, in an unrelated criminal proceeding, plaintiff pled guilty to five counts of mail fraud in the United States District Court for the District of New Jersey. He also pled guilty to money laundering in State court.

After entering his guilty pleas, but before sentencing, plaintiff gave a discovery deposition in the malpractice action. During the deposition, plaintiff's counsel directed plaintiff not to answer any questions regarding his criminal charges. However, plaintiff's counsel promised that plaintiff would answer such questions at a subsequent deposition after sentencing.

In June 2013, the District Court sentenced plaintiff to eighty-four months of incarceration, and ordered plaintiff to pay approximately $3.8 million in restitution. The State court sentenced plaintiff to fifteen years of incarceration, to run concurrently with the federal sentence. In September 2013, plaintiff surrendered to Federal Correctional Institution (FCI) Fort Dix, and was subsequently incarcerated in Federal Medical Center (FMC) Devens in Massachusetts.

The discovery deposition was never resumed. Plaintiff's counsel filed a motion in the malpractice action seeking to allow plaintiff's discovery deposition testimony to be admitted at trial in lieu of his testifying in person. In support of the motion, plaintiff's counsel certified that plaintiff "has not responded to [counsel's] efforts to communicate with him," and that plaintiff's wife advised counsel that plaintiff suffers from dementia and is delusional. On March 20, 2015, the motions judge denied plaintiff's motion without prejudice due to lack of evidence that plaintiff had a mental problem. The motions judge stated the evidence could be supplemented, in a motion re-filed before the trial judge.

At a May 26, 2015 motion hearing, defendant sought dismissal of plaintiff's complaint for lack of prosecution. Defendant argued that plaintiff could not rely on his discovery deposition testimony in lieu of testifying at trial.

Plaintiff's counsel represented that, in "February 2014 . . . I wrote to Ft. Dix about the procedure for appearance in person, or for a videotape." Counsel attempted to contact plaintiff by mail numerous times, but plaintiff did not reply. On March 11, 2014, plaintiff's wife advised counsel that plaintiff was delusional and would be unable to testify. In May and June of 2014, plaintiff's wife advised counsel that plaintiff was ill, had Alzheimer's Disease, and was delusional. However, the family failed to provide counsel with any medical documentation of plaintiff's infirmity. In March 2015, plaintiff's wife told counsel that she was no longer willing to communicate with him regarding her husband.

Counsel did provide the court with an affidavit from plaintiff's son, Maxwell B. Smith, IV. Plaintiff's son certified that prison authorities would not release medical documents regarding plaintiff to the family, but that "[i]t is apparent to me from my personal observations that my father is incompetent to testify." He further certified that, "FMC Devens has classified him with dementia. He has visual and auditory hallucinations. He is delusional. He talks to the ceilings and walls when I talk to him, he slips into nonsense. His memory is garbled. He requires constant care."

The trial court found as follows. The discovery deposition was "limited in depth and breadth." Moreover, it was "incomplete, and to have a complete discovery deposition contemplated by the parties unquestionably required a second deposition." Plaintiff was "available for three months following sentencing when he ultimately surrendered to the federal authorities at Ft. Dix." During that time and after, "[n]o deposition [or] de bene esse deposition was taken."1 Moreover, there was no effort to depose plaintiff in Massachusetts or telephonically. Since February 2014, plaintiff's counsel made "constant," "conscientious and valiant attempts." However, plaintiff was no longer available and it was not reasonably foreseeable that he would become available in the future. Nonetheless, the discovery deposition was "incomplete, unreliable, and not consistent with the [parties'] agreement." The lack of testimony from plaintiff "would present a substantial impediment" to proving plaintiff's case. Accordingly, the trial court dismissed plaintiff's complaint with prejudice. Plaintiff appeals.

II.

"The general rule as to the admission or exclusion of evidence is that '[c]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted."'" Ibid. (citation omitted). We must hew to that standard of review.

III.

Plaintiff's counsel argues that plaintiff's discovery deposition testimony should be admissible because plaintiff is unavailable, due to both his imprisonment and his alleged mental infirmity, citing N.J.R.E. 804(b)(1)(A) and Rule 4:16-1(c). N.J.R.E. 804(b)(1)(A) provides in relevant part that, "the following are not excluded by the hearsay rule if the declarant is unavailable as a witness"

Testimony given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination.

Under N.J.R.E. 804(a)(4), "a declarant is 'unavailable' as a witness if the declarant . . . is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial."

Rule 4:16-1 provides in relevant part that "any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used in accordance with any of the following provisions:"

(c) Except as otherwise provided by R. 4:14-9(e) [governing videotaped depositions], the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

[Ibid. (emphasis added).]

"The unavailability of a witness under [Rule] 4:16-1(c) is essentially the same as under N.J.R.E. 804(a)(4) where all reasonable means to procure the declarant's attendance at trial must be exhausted." Avis Rent-A-Car v. Cooper, 273 N.J. Super. 198, 202-03 (App. Div. 1994).

A.

Plaintiff's counsel has not made a sufficient showing that plaintiff was unavailable to testify. A party seeking to admit prior testimony under N.J.R.E. 804(b)(1)(A) must demonstrate that the witness is unavailable. State, Dept. of Envtl. Prot. v. Standard Tank Cleaning Corp., 284 N.J. Super. 381, 400-01 (App. Div. 1995). Moreover, "the party offering the deposition [must] firstdemonstrate that there are no 'reasonable means to procure the declarant's attendance at trial.'" Witter by Witter v. Leo, 269N.J. Super.380, 391 (App. Div. 1994) (citation omitted), certif. denied, 135 N.J. 469 (1994).

First, the trial court correctly found that plaintiff was not unavailable during the three-month period between his sentencings and his surrender, when it was agreed he would complete his discovery deposition. However, he failed to complete the deposition as agreed, and no steps were taken to conduct a de bene esse deposition in anticipation of his imminent incarceration. Thus, even if plaintiff was unavailable "at the time of the trial," plaintiff's counsel failed to show that he sought with reasonable diligence to complete his deposition "before trial." See State v. Hacker, 177 N.J. Super. 533, 540 (App. Div.), certif. denied, 87 N.J. 364 (1981).

Second, although inability to attend can be caused by "imprisonment," plaintiff did not show that he was actually unavailable due to imprisonment. R. 4:16-1(c); see Biunno, Waissband, & Zeyas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 804(a) (2016). Plaintiff was initially incarcerated nearby in FCI Fort Dix. Even after his transfer to FMC Devens, plaintiff could have requested his transfer to a closer institution.

"The [Federal] Bureau of Prisons will consider a request made on behalf of a state or local court that an inmate be transferred to the physical custody of state or local agents pursuant to state writ of habeas corpus ad prosequendum or ad testificandum." 28 C.F.R. 527.30. "Transfers in civil cases pursuant to a writ of habeas corpus ad testificandum . . . . ordinarily shall be recommended only if the case is substantial, where testimony cannot be obtained through alternative means such as depositions or interrogatories, and where security arrangements permit." 28 C.F.R. 527.31(g).

At appellate oral argument, plaintiff's counsel admitted that plaintiff's transfer was never actually requested. Counsel asserted that such a request would have been futile. However, plaintiff has not shown that federal authorities would have found that his case was not substantial, that security arrangements could not be made, or that his prior incomplete discovery deposition was an acceptable alternative means.

Even if a physical transfer to a New Jersey prison was not possible, other arrangements could have been made. See United States v. Mandel, 857 F. Supp. 253, 255 (E.D.N.Y. 1994) (where the federal defendant was the plaintiff in a state civil trial, ordering the Bureau of Prisons "to make defendant available and provide appropriate facilities to enable either: (1) a videotaped deposition of defendant which counsel may offer at trial; or (2) defendant's testimony in the state court proceedings by audio connection"). Here, no steps were taken to conduct a de bene esse video deposition under Rule 4:14-9 at FMC Devens or FCI Fort Dix. Accordingly, plaintiff has not met his burden of showing that he was unavailable to testify due to his incarceration.

Third, the certification from plaintiff's son was insufficient to demonstrate that plaintiff was unavailable due to mental illness or infirmity. "A factfinder should not be allowed to speculate without the assistance of expert testimony in an area where the average person could not be expected to have sufficient knowledge or experience." State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000). Certainly, a medical diagnosis tending to show incapacity or mental infirmity is an area where the average person could not be expected to have sufficient knowledge or expertise. Plaintiff's son notes that FMC Devens would not release medical records to the family, but that does not excuse the necessity of some competent evidence of plaintiff's alleged condition, such as a mental examination by an expert.2 Accordingly, plaintiff has not met his burden of showing he was unavailable to testify due to mental incapacity.

B.

Even if plaintiff had shown he was unavailable, his unavailability alone does not make his discovery deposition admissible in lieu of testimony. He was also required to show that his deposition satisfied N.J.R.E. 804(b)(1)(A). The trial court did not abuse its discretion in finding that plaintiff's incomplete discovery deposition did not offer defendant, as "the party against whom the testimony is now offered," the "opportunity and similar motive . . . to develop the testimony by examination or cross-examination" as he might have had if plaintiff were testifying at trial. N.J.R.E. 804(b)(1)(A).

First, a discovery deposition does not necessarily involve the same motive or opportunity to develop testimony as at trial or in a de bene esse deposition. See Hearon v. Burdette Tomlin Mem'l Hosp., 213 N.J. Super. 98, 104 (App. Div. 1986). "For tactical reasons a party may not avail himself of the opportunity to fully examine or cross-examine a witness during a discovery deposition, preferring to retain an element of surprise for the actual trial. For this reason extra care should be taken in admitting deposition testimony taken for discovery purposes[.]" Biunno, supra, 1991 Supreme Court Committee Comment on N.J.R.E. 804(b)(1).

Second, the discovery deposition was incomplete. At the beginning of plaintiff's deposition, defense counsel put on the record that "[w]e have agreed . . . that [plaintiff's counsel]'s office will inform me when [plaintiff]'s criminal sentencing is concluded and I will have the right then to take a second deposition of" plaintiff. In agreeing that further testimony would be offered, then failing to provide such testimony, plaintiff further deprived defendant of his opportunity to fully develop plaintiff's testimony.

Plaintiff's counsel argues that we should not consider the deposition incomplete, because any testimony elicited at a second deposition would have been excluded at trial, in favor of the judgments of conviction. However, a party may prove a witness's criminal conviction either "by examination, production of the record thereof, or by other competent evidence." N.J.R.E. 609(a)(2) (emphasis added). Moreover, a party's admissions in his plea hearings may be "admissible as bearing upon his credibility in the civil action." State Farm Fire & Cas. Co. v. Connolly, 371 N.J. Super. 119, 124 (App. Div. 2004) (citing N.J.R.E. 803(c)(22)); see also Tonsberg v. VIP Coach Lines, 216 N.J. Super. 522, 527-29 (App. Div. 1987).

"[A] party's fundamental right to due process . . . includes the right to . . . cross examine a witness." Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 93 (App. Div. 1986). This right is particularly important when the absentee witness is the plaintiff. "Defendants have a right to a plaintiff'stestimony in presenting their defense." Gonzalez v. Safe & Sound Sec. Corp., 185N.J.100, 114 (2005). "The one who initiates that process by filing a complaint cannot be permitted to obstruct that search when it becomes unpleasant or inconvenient." Id.at 117.

Thus, we cannot say that the trial court abused its discretion in not admitting plaintiff's incomplete discovery deposition in lieu of trial testimony. See Kuropchak, supra, 221 N.J. at 385.

IV.

Next, plaintiff's counsel argues that even if the deposition was inadmissible, counsel should still have been allowed to attempt to prove plaintiff's case without any testimony from plaintiff. Counsel argues that even without plaintiff's testimony, a jury could have found for plaintiff on the basis of his expert's testimony and medical records.

In February 4, 2010, more than five years before the trial court's ruling, Michael S. Broderson, M.D., provided plaintiff with a two-page expert report. It does not appear that Dr. Broderson ever personally examined plaintiff, but rather only "reviewed all pertinent medical materials and reports" regarding plaintiff.

"In a medical-malpractice action, the plaintiff has the burden of proving the relevant standard of care governing the defendant-doctor, a deviation from that standard, an injury proximately caused by the deviation, and damages suffered from the defendant-doctor'snegligence." Komlodi v. Picciano, 217N.J.387, 409 (2014). Here, plaintiff's counsel claims that his expert would have testified regarding his opinion that defendant was negligent in failing to perform a retrograde urethrogram, and that factual information could have been derived from the "underlying medical records."3 However, counsel does not show how he could meet plaintiff's burden to prove damages solely using the expert's report. Indeed, the expert had never even examined plaintiff, and the report contained nothing to support plaintiff's claims in his complaint that he "suffered great pain and anguish," that defendant "failed to inform plaintiff and obtain his informed consent," or that plaintiff underwent "serious and permanent emotional distress over his injuries."4 Plaintiff's counsel did not proffer testimony from anyone who might otherwise be personally aware of any damages plaintiff may have suffered.

For these reasons, we cannot say that the trial court erred in dismissing the complaint.

Affirmed.

1"A de bene esse deposition is taken for potential use at trial." Mellwig v. Kebalo, 264 N.J. Super. 168, 171 (App. Div.), certif. denied, 134 N.J. 478 (1993).

2 See Biunno, supra, comment 1 on N.J.R.E. 804(a) (citing United States v. Faison, 564 F. Supp. 514, 514-15 (D.N.J. 1983) (finding a witness unavailable only after an evidentiary hearing considering medical records and expert medical testimony), aff'd, 725 F.2d 667, 671 (1983); and State v. Washington, 202 N.J. Super. 187, 194 (App. Div. 1985) (affirming the trial court's decision finding the witness unavailable based on a physician's assessment), certif. denied, 102 N.J. 308 (1985)).

3 Defendant correctly notes that it is also premature to assume that plaintiff's medical records would have been admitted in their entirety, even if they were business records, because complex diagnoses within those records made by non-testifying physicians may have been inadmissible. "[W]hen the expert is not produced as a witness, [N.J.R.E. 808] requires the exclusion of his or her expert opinion, even if contained in a business record, unless the trial judge makes specific findings regarding trustworthiness." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012). However, we need not speculate on the inadmissibility of medical records which are not part of the record on appeal.

4 Plaintiff offered no testimony about pain, suffering, or emotional distress in his discovery deposition.